UN Norms: Dead or Alive?

So you thought the UN Norms were DOA?  Well, late last year, two lawyers, one from Australia and one from the UK, dredged up the UN’s attempt to create a global code of conduct for corporations and wrote an analysis on their use going forward.  Their paper is called The UN Human Rights Norms for Corporations: The Private Implications of Public International Law.

Overall, the authors conclude that discarding the Norms would be a mistake as their content provides a good basis for international human rights standards as applied to corporations.  They further suggest that the Norms might even be a basis for an international legal treaty in the long-run.  However, while they recognize that the Norms adopt a fairly standard international human rights format, they point to five main differences.  The authors don’t seem to think that the differences should pose an obstacle to the Norms’ acceptance, but I wonder if that’s true.

The differences (very generally paraphrased) are as follows: (1) the Norms are addressed to corporations, whereas other international human rights treaties are addressed to governments; (2) the Norms cover a number of different areas of law (eg, environment and consumer protection) which are normally addressed separately; (3) the Norms raise the new issue of a “sphere of influence” for corporations; (4) there is no clear delineation of duties for governments and corporations; and (5) the scope of application is wider than most codes in that it applies down the supply chain and to non-state actors.

According to corporations, the decision by the UN Sub-Committee on Human Rights (which drafted the Norms) to direct these standards to corporations rather than governments is a big deal.  Other international labor and human rights treaties, such as the ILO Conventions, are clearly addressed to governments, which makes it clear that governments have the ultimate responsibility in these areas.  The Norms’ orientation ties into the problem that there are no clear duties for governments versus businesses established in the Norms.  As a result, a main objection the business community had to the Norms is that corporations would be required to adopt functions meant to be carried out by governments.  (It should be pointed out, however, that many businesses have no qualms about this functional blurring when the results benefit them – eg, water privatization in South America and electricity privatization in the U.S.)  Businesses were equally concerned about being held accountable for actors and processes within a nebulously-defined sphere of influence.  Exactly how far did this influence extend, they asked?  And what level of responsibility would be assigned at what stage of the supply chain?  Furthermore, it seemed that their responsibility was supposed to cover a large number of areas, from labor and environment to consumer protection.  They felt the burden the Norms placed on them was too large.

The authors of the report argue (and again, this is broad paraphrasing) that corporations already have obligations regarding labor and the environment under domestic legislation, so the fact that the Norms ask them to take responsibility in these areas should not be a new idea.  Furthermore, the Norms do make it clear that the main responsibility for enforcement rests with governments, not with corporations.  The authors also point out that many laws are worded in such a way that explicit obligations on the part of the relevant parties are not clear, that these boundaries (such as a sphere of influence) are meant to be delineated through practice at the state level.  In particular, human rights are by their nature universal and therefore imprecise.  Likewise, the definition of responsibility applies in domestic law just as it does in international law, so again, this concept of obligation should not be anything new.  As to the point about covering multiple areas of law, the authors point to an artificial division in human rights between, for example, labor rights and human rights, which clearly overlap.

The authors are right to criticize corporations for being too reticent in accepting their responsibility regarding the rights enumerated in the UN Norms.  However, I think they are too dismissive of the corporations’ concerns.  For example, in an area where image is everything (or an awful lot anyway), it makes a big difference that an international human rights document is geared toward corporations rather than governments.  While the goal of drawing attention to the role multinationals must play in addressing these problems is admirable, the approach is a bit too “in your face” to be successful, at least in the current environment.  With regard to the wide range of areas covered by the Norms, I think this concern is the least problematic in the sense that I can’t see how it would impact corporations differently if the issues were separated into different treaties or agreements (would it?).  The inclusion of new areas of responsibility would surely be of greater concern.

The last three issues, regarding sphere of influence, delineation of responsibility and scope of application, all get to the balance of responsibilities between corporations and governments.  This is absolutely a legitimate concern, not only on the part of corporations, but from everyone’s perspective.  I think few people would disagree that corporations need to take more responsibility for their actions in the human rights arena.  However, I can see two problems with leaving the responsibility aspect too vague.  First, although the authors point out that often vague domestic laws are hammered out in practice, international laws usually do not have the weight of domestic laws.  As a result, who is to say that anything would be done in the first place?  Clarified standards would allow outside parties to hold corporations to particular obligations.  Second, if something were to be done, and corporations and governments found a balance, would this balance be right?  We see in our audits how much power corporations have in determining market conditions in some countries.  For example, local Chinese authorities routinely flout overtime laws to meet the demands of global retailers.  Do we really want corporations to have so much power that they determine, for instance, infrastructure development or government policy in some places?  Both scenarios point to a definite need for clarification on the role of corporations versus governments in upholding their human rights obligations. 

So while the UN Norms might be a good start for discussing the role of corporations and governments in promoting human rights, it seems like a good idea to have further discussions and, if possible, clarification on the areas raised by corporations.  Indeed, it seems potentially problematic to move forward without this clarification.